Saturday, November 30, 2013

While the Kenya Executive seems to dither and blinker sometimes getting blinded by the complexities of change, it is quite clear to many who have been engaged with steps of growth in the country that the Kenyan Judiciary should NOT be at this time at same level as the Executive or the Legislature. It should be independent. Standing proudly head and shoulders above the fray- higher than the snow on Mt Kenya- to give this nation of diversity balance. To set the example of the management of such gifted resource both human and environmental.But the Kenyan Judiciary stands tried. Kenya is afraid to take change head on. And yes, even as they say change comes slowly and that it respects cultures and traditions we have not done what we have overnight. The implementation of the Constitution cannot remain too painful to be done in a country where we cut people easily, win marathons and where we pull our act together fast after terror attacks. When we write in the Constitution that we have accepted change and given it to ourselves as a nation, we need to believe it. To task ourselves, to challenge ourselves and to account for our hopes and struggles.

I know why reading today, of November 2013, what Justice Willy Mutunga said at the launch on a book on election petitions in Kenya made me shudder and wonder. There is nothing wrong with books. I understand that the times- 2013 in particular- have been rough and tough for the CJ and for Kenya in many ways. But our 50 years of celebration of Kenya's independence should count for change too. It is not books and laws that are lacking. It is integrity.Our focus to achieve and not just for ourselves. Slaying the dragon of greed and corruption. All have had to fight their way there, Kenya must do so now.I hoped and still do that because of our multiple challenges and the fact that in 50 years we cannot boast about being even Cub Tigers as the Philippines and Indonesia can in spite of massive poverty, nor come close to the Four Asian Tigers or Dragons in terms of development we could still say that our New Mother of All Laws the 2010 Constitution has a spirit that can bind us together. That we can invest and allow others to because of security in this attractive land. That all tenders or building infrastructure will be competitive and well researched. That we can stop once and for all dangerous driving which many and that depends on a willing people and keep HIV/Aids in check. The list is long regarding education and health services, salaries and reforms in the police force. The rule of law.

In about 50 years, Europe put herself together after the Second World War. Norway was a poor country in 1969 and the country has been built on proper management of the finding of oil, tax system and on immigration to the US by the poverty ridden people who built their country from heavy toil and investing back home until we have what stands today. Fifty years is important a period in individual lives as in nations. Challenges have been turned into opportunities elsewhere why do we wallow in ours?

I wanted to hear certain hope in law from the Chief Justice of Kenya but I hear the opposite. Why? Many died to ensure an independent Judiciary especially since Kenya now has a bigger governance arrangement and small commissions appointed by politicians, dissolved by them can become a law unto themselves and help the return of dictatorship as the President can make decisions that leaves Kenya unprotected. For Kenya is neither the years that have passed nor the persons in power today. Kenya is. I wanted that deep change and this we must get. We cannot justify otherwise.

When the struggle for a new Constitution was at its febril levels in the 90s, one of the reasons for the demand, in fact the main bone of contention was the reduction of presidential powers.

As I write the Judicial Service Comission, the party that should have stood together to oversee the strengthening of the Judiciary has been sent home by the President. I watched lawyer Elisha Ongoya interviewed on KTN tell how precarious that is. And not only that, how embarrassing for the judiciary. And it does not stop there, there is an activist who has gone to court to show reason why the Chief Justice should be sacked. I would take this lightly were it not that all falls into a plan which one heard about at the time of the election of March 2013. I mean then, certain people who read hope in the CJ were seen as making a terrible mistake. Yet our hopes were banked on the fact that this is a CJ who told us that Kenya's new Constitution of 2010 would protect everyone from the simplest hut to State House.

And moreover, many feel he knows injustice in his own skin. He experienced detention in Moi years, oppression. Many feel betrayed but that is not the reason why it is said he has to leave his job. The Executive did feared his stand on other issues but he rules with six other judges not alone. That he has a strong human rights track record which no one can contest. What is happening or what happened? But besides laying hopes on individuals, many times theyquote other countries in cases that have vexed Kenya. Do they also rely on small bodied to judge electoral petitions or only theirConstitutions? What is the CJ of Kenya saying and not saying?

And indeed during the court case to judge the presidential election petition election of 2013 we were told about the precedents of the Supreme Court of the Philippines. Here are the details of that petition and the ruling which was gazetted in Kenya . http://www.the-star.co.ke/news/article-116963/supreme-court-judgment-presidential-petitionAnswering to many queries on the fact that the election petition was time barred for the petitioner, the Chief Justice said he was impartial and that the case was easy to decide since the other side did not have good evidence. So this should be over. Still in my chest is faith that when such issues come up and they are bound to return, we shall have an independent judiciary to deal with the matter. But not so the Chief Justice. He speaks of how the court should not be the place for such petition. And I wonder then why we fought for a strong mother of all laws, a constitution that leaves us all dry under a national umbrella of laws that can stand all storms. Why does the Chief Justice, CJ, now speak of a smaller body when what we wanted was the big body? And this at a time when with regard to media law, the Executive, has formed such a small body of their own accord which all have said will, together with a media bill of 2013 sit on Freedom of Expression? President Uhuru Kenyatta made his amendments but no, they have not taken off the yoke of abuse of law from the Bill and for the fifty years of Kenya's freedom journalists are planning yet another demonstration to object to his amendments that do not make that law better. We have a Constitution but we are skirting it and running away clad in old clothing of I do not know what type?For the CJ also went on to lament that Kenya is deeply divided on different ground and the list went: Ethnic, tribe, clan, religion, class, culture and race. And again from him we expect to hear that the rule of law is here in Constitution 2010 to be that balm that crosses these ridges and rifts of division by first and foremost protecting such things as land distribution, resources such as oil and equal sharing of wealth in a good tax system at least trying to imitate the Four Tigers, the various Commission Reports such as the Ndung'u Report and that of the Truth and Justice Commission (for what it is worth). Instead we hear lamentations all around and again wonder why we are shy to marry the law of change with all the pain it might take because it is better that way than in any other style.

Kenya suffered in 2007 when such a petition was not made by Raila Odinga because he did not trust the courts. Now am on this not because of a time warp but since the Chief Justice two day ago explained again that he could not have pleased everyone. Did he really say that "The courts cannot satisfy everyone in an election dispute?" The Supreme Court, I thought was not meant to please anyone but to stand b. It was supposed to serve justice. He was referring to the judgement that his court announced in March that Jubilee had won the Kenyan General Election.

Again, that was only natural and is the norm anywhere to expect that the three arms of government: The legislature, the Executive and the Judiciary are separated for the good fo the people. It was actually more than a sigh of relief considering that it is before the law where we should be equal and Kenya is in the news many times for the need of equality before the law since impunity is nursed by the rich and powerful who also happen to become the main political players. So we did end up in the Supreme Court after the Election of 2013 and whereas many took the ruling for what it was, it did not fail to be examined over and over again and it still stands on trial in the eyes of many.

At 50 years of independence, in Kenyan we are still at the point where memories of what it took to get the first Constitution and Self-governance in 1963 from the British are fresh in every sense of the word. Some Kenyans can still sniff the smell of the paper the law was written on, the feeling in the air, the touch of Kenyan people without the ugly differentiation of ethnic brand, even if the roots of identity as belonging for the sake of benefitting those one was close to were thrust in both colonial and and first three presidencies Kenya has had.For every year on the Madaraka Day, which is celebrated on 1st June, people have gathered at our Freedom Park and other spaces in the country and sang and recalled our history. On Jamhuri Day on December 12th when finally independence came, the same is done. Dancing to the same happy song of independence, celebrating. Flying past the President and his guests in style, armies marching past and a couple of times also citizens daring to make a point.I recall how many were arrested in the Jamhuri Day of 2008, for reminding MPs as the President gave his speech that all had to pay taxes. I distributed with others thousands of T-Shirts with the logo "No Taxes for MPs, No Taxes for us, utado?" The arrests is a long and different story but that Day the message reached the top. Five decades are over. The foundations of justice, are still wanting. Many have worked for equality before the law. It took long to get the August 2010 Constitution. We have to read in earnest and practice what we laid out in Chapter 6 of the 2010 Constitution. Integrity. We have to admit that without integrity in leadership we cannot prosper. It is still basic. The Executive, the Legislature and the Judiciary must all be independent and free before the country can celebrate years of independence. The people must be free to say that and still be regarded as the most important whole where as these powers remain parts.

Have you watched this ORF link? You can blame whom you will for the tragic Westgate attack, a huge blot on Kenya's security but what I call the Eastgate is in that clip above. And for this, we have only ourselves to blame. Media silence too. Meanwhile in the mix is the worst thing that could be happening to Kenya now. A media Bill that is tailored to gag journalists. To return Kenya to the terrible days in which people were tortured for imagining the death of a president, for speaking... for being dissident, killed. Media freedom and killings are closely related for who wants to speak or show them when there is fear?

The timing of a media gagging Freedom of Expression in Kenya has helped us to see where this country is. In a bad place. It is not the time to argue about media irresponsibility. That has its place. Has had mechanisms. This is not surely where our problem is and we should know it right from the State House to the smallest hamlet as Chief Justice Dr. Mutunga says when he speaks of justice. I know the Kenyan Judiciary is also in the dragnet. This is not a good time. It is not time for our wedding of Kenya, not even for kissing welcome change. The negotiations are tough.The content of the Media Bill in question is untenable. It is not a matter of courting controversy, it is betrayal. Kenyans have fought for and need a free press especially now.It does not matter how much some MPs such as one I saw try to put journalists on the carpet about every line of the Bill. The Committee for the Implementation of the Constitution led by Charles Nyachae has spoken about the unconstitutionality of this Bill. It is illogical.But Kenyan MPs are still in 2013, defending an unconstitutional Bill. They are the only ones arguing it is constitutional. Further, it appears that this Bill might be passed by Eastern African countries. In Kenya it is now on the President's table. Many are talking about the return of the Mois days in Kenya with one journalist writing that we might as well take the key and re-open the Nyayo torture chambers. But when you see the ORF documentary above, when I see it, I ask if the torture chambers were ever closed and where indeed the media has been at times? But the Bill.If the President signs it, it becomes law. But this unlawful act in itself would give a chosen group power to oversee the media but that body is bound to sit on media. If the President does not sign it, it still is a poor omen. I can see how authors, bloggers and all will be hounded down. Made to pay fines in the millions. Imprisoned. Books? Bookshops already feared in 2008 to stock It is our Turn to Eat, by Michela Wrong. But publishing chances have increased the world over and distribution of books is not dependent on governments any longer. Sometimes I smile in my tears. Not even the news is.. wake up and smell the coffee! Snowden and Wikileaks did not teach you?Media should be more alive to the end of mainstream control itself too and welcome it. In Kenya, media has censored itself before. It has been silent when it should have queried some things more specifically. Was fear with us all the time or is it political calculations for our own benefit? We need openness. Whispers?We do not need those in Kenya now. There is an outrage but it could be stilled by a nod in one direction and a signature written or not written. Already, if you ask me, for policemen such as the ones I have seen above, the nod is given. Outspokenness is banned. Media must run. Government must learn. It is behind the times for there are Internet outlets and so many other media one cannot silence in the world. Why not kiss democracy? The mainstream media cannot stand proud. In a country divided into almost two blocks of power, it was too easy to see which candidate each media endorsed and that was not because of advertisements. Then came a huge Breakfast which almost all media shared with the new president. Is this not part of the reason why media should be so under government in Kenya. This sends out all the wrong signals but is it not past the time for signals. The signs of the times came earlier. Why do we doubt we were meant to fear even before? But fear takes us nowhere. You do not need to be afraid of truth. And this is why Kenya did not need a baggage ridden top, a presidency that is questionable on the rule of law. But I heard the President say that even those who advised him not to run for the presidency as he is indicted by the International Criminal Court (ICC) are his enemies. Was all advice about assessing integrity for leadership which is also part of the Kenyan Constitution 2010, Chapter 6 to be termed evil? Now he is the president. Impunity is still not tolerable. We have to follow the rule of law. We are not where we should be in this. We cannot cheapen a Constitution made with so much pain and struggle. When I look at this video specifically, I have strong reactions. I wrote about GPO Oulo and Oscar. I saw them at work very soon before they died and that was not so far from where I was. It is not something I can wish away. It was meant to scare and disturb human rights activists completely. Shake them into silence, leave their families trembling and it did. Left everyone casting stones on those who are outspoken. But can we go on like this forever? Kenya, the things we try to forget and sweep under the trees or make them part of our manure. Yes you want silence so that you can develop in peace but I think it should be the other way round. You need voices and noise so that you can begin to see. I speak to you now...on my reactions to the video above.Oh yes, you can keep saying that we do not need activists. Do all against them. You remind me of Chesterton's The Donkey... "when fishes flew and forests walked and figs grew upon thorns... Starve, scourge deride me... in this case there are no secrets kept. Why all these words? Are these victims able to speak? Watch the faces of the women closely when their children are killed. And then they speak of fear. Then some say, but it is not possible to keep the pain. Who answers for this? How many reports do you hide? Why have you made those who ask enemies did you not want to know the truth? These people who died.They will haunt you still...in thousands, do you hear? Is this not the way it happened in Nazi times? It happens like this and slowly you are cooperating, endorsing in silence.You don't even need words to understandthese shocking things always around usthe very, very, ugly and disturbing face of impunity in Kenya and the stories media did not take up before, will they do something now that the guns are trained not only on media but also on NGOs ( Russian style?) First they came for so many and we did not speak because we did not believe it? And when we spoke we were inconsistent, shrugged our shoulders and tried to forget. We shall not. Who killed journalist Francis Nyaruri in 2009? Where is his story? Who silenced his family?